Alright, this is probably a dumb question, most likely. But here is the deal. Last week I shot a short film, and a couple of my actors went off on a tangeant in a scene and improvised a bit. Well, the problem is . . . what they did came out really well. What I didn't realize at the time was . . . they were speaking lyrics from commercial songs. The lyrics are probably spoken for about ten seconds.

Basically, what I'm getting at is . . . would it be legal to keep that scene? I mean, would that fall under any type of protective legal barrier such as parody? They aren't playing any instruments, it is purely the speaking of words. Is this similar to the mention of Star Wars in Clerks?

Matthew Overstreet

Paul Tauger

August 11th, 2005 12:28 PM

Quote:

Originally Posted by Matthew Overstreet

Alright, this is probably a dumb question, most likely. But here is the deal. Last week I shot a short film, and a couple of my actors went off on a tangeant in a scene and improvised a bit. Well, the problem is . . . what they did came out really well. What I didn't realize at the time was . . . they were speaking lyrics from commercial songs. The lyrics are probably spoken for about ten seconds.

Basically, what I'm getting at is . . . would it be legal to keep that scene? I mean, would that fall under any type of protective legal barrier such as parody? They aren't playing any instruments, it is purely the speaking of words. Is this similar to the mention of Star Wars in Clerks?

Matthew Overstreet

Matthew, unfortunately I cannot provide legal advice to non-clients, so I'll just address some of the issues that you raised in the general context. I have no opinon as to whether you can use what you shot or not.

Copyright protects works of authorship. Titles, by definition, are not works of authorship and are not, therefore, protected by copyright (though they may have accrued some trademark rights).

Song lyrics are works of authorship and are protectable by copyright.

Parody is a species of fair use, a complicated and arcane equitable doctrine that is raised only in the context of a defense to a copyright infringement law suit, i.e. you won't know if it's fair use until you've been sued and a judge rules. There are specific criteria for determining whether a specific use constitutes parody in the context of fair use. As examples, the protected work that is parodied must be the subject of the parody, and the parodist can take no more of the original than is necessary to "conjure up" (those are the literal words of the legal test) the original.

Fair use determinations can NOT be made by laypeople, or even non-lawyers who are not familiar with the entire body of fair use decisional law.

If you plan to do anything with this project, you should consult a competent intellectual property attorney. If the attorney tells you that your work is non-infringing, the fact of the opinion is prima facie proof of non-intentional infringement which, among other things, will minimize your potential damages liability.

Jonathan Putnam

August 11th, 2005 02:08 PM

Well, Matthew, I am not a lawyer but I think I can give you reasonable advice as I have researched the area of copyright law rather extensively.

The four factors judges use to consider fair use are:

1. the purpose and character of your use

2. the nature of the copyrighted work

3. the amount and substantiality of the portion taken, and

4. the effect of the use upon the potential market.

Ten seconds of quoted lyrics is not a substantial portion of your work (I assume) and it will not affect the potential market in any way. Here is an excerpt from Stanford's Copyright Library:

"Because there is a sizable gray area in which fair use may or may not apply, there is never a guarantee that your use will qualify as a fair use. The fair use doctrine has been described as a murky concept in which it is often difficult to separate the lawful from the unlawful. Two types of situations are especially likely to cause legal problems:

Your work causes the owner of the original work to lose money. For example, you borrow portions of a biology text for use in a competing biology text.

The copyright owner is offended by your use. For example, you satirize the original work and your satire contains sexually explicit references or other offensive material.

Remember, these criteria do not determine whether you will prevail in a fair use lawsuit --they simply indicate whether you are likely to trigger a lawsuit. When you use someone 's work and deprive them of money or offend them, the chances of a lawsuit increase."

Bottom line--Leave it in. Getting an attourney would be overkill for this particular issue.

Quote:

Fair use determinations can NOT be made by laypeople, or even non-lawyers who are not familiar with the entire body of fair use decisional law.

Remember, fair use determinations are not made by lawyers either--they are made by judges. While a lawyer specializing in copyright law will be more nuanced with the case law, they will likely charge you money, and probably tell you the same thing I have. The Stanford site above is a good place to research. Here are a couple of other sites regarding fair use in the world of collage and music sampling:http://www.funnystrange.com/copyright/index.htmlhttp://www.low-life.fsnet.co.uk/copy...rt3.htm#ethics

To put it all in perspective, think of a movie in which a character quotes a book for less than 10 seconds; it is a small part of a larger whole and as such the movie would be a transformative work. Just my non-legally-binding 2 cents.

Paul Tauger

August 11th, 2005 02:35 PM

Quote:

Originally Posted by Jonathan Putnam

Well, Matthew, I am not a lawyer but I think I can give you reasonable advice as I have researched the area of copyright law rather extensively.

Sorry, Jonathan, but you haven't researched copyright law extensively enough to understand how equitable doctrines are applied by courts. The four fair use factors codified in the statute are non-dispositive, meaning all can be present and the court will still not find fair use, or none can be present and the court will. ONLY by understanding the decisional law can you begin to make predictions about the outcome of asserting a fair use defense.

Your analysis is predicated upon a literal reading of the statute and, as such, is neither accurate nor relevant. Fair use determinations can NOT be reliably made by laypeople.

Quote:

Remember, fair use determinations are not made by lawyers either--they are made by judges.

And what do you think judges are? Federal courts have exclusive jurisidiction over copyright infringement actions. All federal court judges are former lawyers. More to the point, all federal court judges understand the concept of equity, stare decisis and precedent, which is why we lawyers can make predictions for our clients about the outcome of cases.

Quote:

While a lawyer specializing in copyright law will be more nuanced with the case law, they will likely charge you money, and probably tell you the same thing I have.

I can absolutely guarantee they will not tell the OP the same thing as you. The issue isn't whether lawyers are "nuanced" in case law. They are, and their job is to bring the relevant case law to the attention of the judge, who reads their briefs and makes his decision by applying traditional concepts of equity, as well as the applicable decisional law, as read against the analytical framework presented by the statute, in the context of the First Amendment (which is the primary purpose of fair use doctrine -- to balance the absolute restrictions on speech represented by copyright law against the prohibition on speech restrictions required by the First Amendment).

The Stanford site is a good place to learn about the basic principles of copyright, including fair use. It is not a substitute for a legal education and experience in the field. UK law is completely irrelevant to US fair use determinations.

Quote:

To put it all in perspective, think of a movie in which a character quotes a book for less than 10 seconds; it is a small part of a larger whole and as such the movie would be a transformative work. Just my non-legally-binding 2 cents.

To put it in perspective, your non-legally-binding 2 cents opinion is wrong and shouldn't be relied upon. Take a look at Harper v. Nation (one paragraph quoted out of an entire book in a book review held NOT fair use). Fair use doctrine is one of the more difficult and arcane copyright doctrines. It is courting disaster to rely on a lay, "common sense" analysis.

Why, oh why do intelligent professionals who, themselves, work in a field that requires extensive technical knowledge, as well as considerable experience, think the law is no less arcane and complex?

--------------------------------------------------------
After thinking about this for a while, I have more to say on the subject;

Fair use is an intensely fact-specific doctrine. Based on the limited information provided by the OP, it is impossible to determine whether his proposed use would come within fair use. Among the critical information that is missing is the song, the context in which the song lyrics are used, and what will be done with the final project. This isn't an invitation to the OP to post this material -- I'm only pointing out that, without it, there is no way anyone, lawyer or otherwise, could make a fair use determination.

And, finally, fair use is a _defense_ to copyright infringement, i.e. whether or not the use is privileged fair use will be determined only after a copyright infringement lawsuit has been litigated to a decision on the merits. Defense of the garden-variety copyright infringement runs in the $100,000 to $300,000 range. Relying on a non-adjudicated estimate that a specific use is fair use means you are betting up to $300,000 that counsel for the copyright owner agrees and will not sue. If you're wrong, even if a use is ultimately determined to be a fair use and results in no infringement liability, you'll still be out-of-pocket up to $300,000. And, of course, if the judge decides the use is not fair use, you're looking at extensive liability which can include statutory damages up to $250,000 AND the plaintiff's attorneys fees if the infringement is found to be intentional.

So, tell me again why it's a bad idea to spend a couple of hundred dollars consulting an attorney?

Jonathan Putnam

August 11th, 2005 05:07 PM

Quote:

So, tell me again why it's a bad idea to spend a couple of hundred dollars consulting an attorney?

I don't think I would characterize it as a bad idea, just an unneccessary move based on the limited information Matthew provided in his post. I agree with you that without knowing the song, the context of the quote within the movie as a whole and the intended final product, it is impossible to accurately determine whether fair use doctrine applies. However, based on what he has posted, he does not seem to be infringing. The actors spoke (not sang) a phrase that was less than 10 seconds consisting of song lyrics. It's not clear if they're verbatim, or whether they're recognizable as lyrics.

The US Copyright Office has a brief section on what is not covered by copyright. Titles, names, short phrases, and slogans are not covered. Depending on the actual lyrics cited, they may be construed as a "short phrase."

Copyright law is certainly an arcane and murky area of the law but that doesn't mean opinions of "laymen" can't be useful. I only included the British sampling site as a link because they refer to several cases in the American court system that are germane to the issue at hand.

You're mention of Harper v. Nation actually illustrates my point quite well. Harper & Row Publishers had negotiated the first serial right to license prepublication excerpts. The reached an agreement with Time Magazine to publish 7,500 words for $25,000 (half up front, half on publication.)

"Shortly before the Time article's scheduled release, an unauthorized source provided The Nation Magazine with the unpublished Ford manuscript. Working directly from this manuscript, an editor of The Nation produced a 2,250-word article, at least 300 to 400 words of which consisted of verbatim quotes of copyrighted expression taken from the manuscript. It was timed to "scoop" the Time article. As a result of the publication of The Nation's article, Time canceled its article and refused to pay the remaining $12,500 to petitioners."
--http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=471&invol=539

There was an significant economic impact to this publication and the court found that The Nation had not acted in good faith. Furthermore, the copyrighted portion of the article was a substantial portion of the content. There was no attempt by the editor of the Nation to provide independent commentary, research or criticism due to the pressure to "make news" by publishing in advance of the publication of the book.

When I said that a copyright attourney would tell you the same thing I am, I was referring to my conclusion (ie. you're in the clear.) My opinion is not simply based on a hunch, or even common sense, but on previous court decisions I have read regarding fair use. If you do decide to seek professional counsel, please post back and let us know what you found out.

Paul Tauger

August 11th, 2005 07:21 PM

Quote:

Originally Posted by Jonathan Putnam

I don't think I would characterize it as a bad idea, just an unneccessary move based on the limited information Matthew provided in his post. I agree with you that without knowing the song, the context of the quote within the movie as a whole and the intended final product, it is impossible to accurately determine whether fair use doctrine applies. However, based on what he has posted, he does not seem to be infringing.

Based on what? I'm an intellectual property lawyer, I make these kinds of determinations every day, and _I_ can't tell whether or not it's fair use based on the OP's description. However, you can?

Quote:

The actors spoke (not sang) a phrase that was less than 10 seconds consisting of song lyrics. It's not clear if they're verbatim, or whether they're recognizable as lyrics.

That's right -- it's not clear. Did you look at Harper v. Nation? 1 paragraph out of book, quoted by a reviewer. Sounds like fair use, yes? It wasn't. That's because there's an _equitable_ doctrine that applies. It doesn't appear in the statute. It _does_ appear in the case law. That principle is this: is the appropriated expression a _central_ idea_? There are collateral principles as well. Note, too, that fair use doesn't compare the appropriated material to work in which it appears, but measures how much of the _original_ work was appropriated. Again, another equitable doctrine that doesn't appear in the statute.

Quote:

The US Copyright Office has a brief section on what is not covered by copyright. Titles, names, short phrases, and slogans are not covered. Depending on the actual lyrics cited, they may be construed as a "short phrase."

First of all, it's not the Copyright Office, but the Copyright Act that defines what is a protectable work of authorship. Trust me, song lyrics are protectable works of authorship and are not excluded.

Quote:

Copyright law is certainly an arcane and murky area of the law but that doesn't mean opinions of "laymen" can't be useful.

Useful for what? If you want to tell someone, "copyright protection applies at the moment of fixation in a tangible medium," fine, feel free. It's not a close call when you're talking about videography, because as soon as something goes on tape, to hard drive or in memory, it's fixed and protected. That's an easy one. Fair use determinations are not easy ones. A lay person's opinion about whether something is fair use is worth nothing (unless that lay person has invested considerable time in learning the law by, among other things, reading the applicable case literature AND learning _how_ to read and apply applicable case literature.

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I only included the British sampling site as a link because they refer to several cases in the American court system that are germane to the issue at hand.

An American judge won't consider those cases (except in very, very rare circumstances). Why would you?

Quote:

You're mention of Harper v. Nation actually illustrates my point quite well. Harper & Row Publishers had negotiated the first serial right to license prepublication excerpts. The reached an agreement with Time Magazine to publish 7,500 words for $25,000 (half up front, half on publication.)

"Shortly before the Time article's scheduled release, an unauthorized source provided The Nation Magazine with the unpublished Ford manuscript. Working directly from this manuscript, an editor of The Nation produced a 2,250-word article, at least 300 to 400 words of which consisted of verbatim quotes of copyrighted expression taken from the manuscript. It was timed to "scoop" the Time article. As a result of the publication of The Nation's article, Time canceled its article and refused to pay the remaining $12,500 to petitioners."
--http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=471&invol=539

There was an significant economic impact to this publication and the court found that The Nation had not acted in good faith. Furthermore, the copyrighted portion of the article was a substantial portion of the content. There was no attempt by the editor of the Nation to provide independent commentary, research or criticism due to the pressure to "make news" by publishing in advance of the publication of the book.

The work in question was a book, and the appropriated portion was a paragraph. It was Harper's copyright that was violated, not Time Magazine's (which had no copyright interest in its article). The paragraph that was at issue was _not_ a substantial portion of the content -- it was only a single paragraph -- but it embodied the central value of the content (it explained Ford's decision to pardon Nixon).

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When I said that a copyright attourney would tell you the same thing I am, I was referring to my conclusion (ie. you're in the clear.)

And I'm a copyright attorney. And I wouldn't tell the OP what you said, nor do I agree with your conclusion BECAUSE it was based on completely erroneous analysis. If you're right, despite ignorance of the _relevant_ facts and applicable law, it's pure chance -- you have a 50-50 shot a correct prediction. After reviewing the relevant facts and applying the applicable law, I might decide the OP's use is fair use -- I don't know, since I don't have anywhere near enough information to make that determination. The difference between us, however, is that my conclusion will be based on fact and law, whereas your conclusion is based on speculation about facts and reliance on a complete misunderstanding of the nature of the law.

In 13 years of practice, I haven't been wrong in my predictions to clients.

Quote:

My opinion is not simply based on a hunch, or even common sense, but on previous court decisions I have read regarding fair use.

Really? Which ones? However much you read, you apparently didn't know that the statute wasn't dispositive until I told you. Did you attend law school? Have you actually _studied_ this stuff on anything other than a casual basis? In what jurisdictions are you licensed to give legal advice to others?

These are rhetorical questions, by the way. I _know_ you haven't been to law school, and I _know_ you're not a lawyer, because a lawyer would know what I've been discussing.

Quote:

If you do decide to seek professional counsel, please post back and let us know what you found out.

That would be most interesting.

Dylan Couper

August 11th, 2005 08:32 PM

I think we've provided more than enough material for the original poster to make his decision.